Opinion of the Court -STILES, J. [ 7 Wash. presented in the record which it is not necessary to discuss. as, in our view of the law, he could in no event recover upon the state of facts presented by the record. The judgment of the lower court is affirmed. DUNBAR, C. J., and SCOTT, HOYT and STILES, JJ., concur. [No. 902. Decided November 22, 1893.] MICHIGAN MANUFACTURING COMPANY, Respondent, v. A. R. SAUNDERS, Appellant. APPEALSETTLEMENT OF STATEMENT AUTHORITY OF EX-JUDGE. The act of January 21, 1893, authorizing certain judges whose term of office has expired to settle and certify statements of fact, does not empower such judges to transfer the matter to their successors in office. Appeal from Superior Court, Pierce County. Delamater & Miller, for appellant. A. R. Titlow, for respondent. The opinion of the court was delivered by STILES, J.-We are of the opinion that the act of January 21, 1893 (Laws, p. 6), authorizing judges whose term of office expired on the second Monday of January to settle and certify statements of facts, did not authorize such a judge, instead of settling and certifying the facts himself, to transfer the matter to his successor in office. Therefore the motion to strike appellant's statement is granted, and the cause dismissed, since it is an equitable action. DUNBAR, C. J., and HOYT and ANDERS, JJ., concur. SCOTT, J., concurs in the result. Nov. 1893.] Opinion of the Court-STILES, J. [No. 1021. Decided November 22, 1893.] THE SOUTH BEND LAND COMPANY, Respondent, v. A. L. DENIO, Administrator, Respondent, AND HARRY H. HUNTER, Guardian, Appellant. AP ATTORNEY AND CLIENT-CONTROL OF SUIT-DISMISSAL OF AP PEAL. The guardian of a minor, who wages an action in court, has the same right to control the action that any other suitor has, and may stipulate for the dismissal of an appeal regardless of the objection of his attorney. Appeal from Superior Court, Pacific County. Edward F. Hunter, for appellant. Richard K. Boney, and Hudson, for respondent. The opinion of the court was delivered by STILES, J.-A suit was brought in the court below against the administrator with the will annexed of Philander W. Swett, the complaint showing that certain lands, the record title to which was in the name of the deceased, had been purchased with money of the South Bend Land Company, and should, therefore, be conveyed by the administrator to it. The appellant, guardian of the minor children of the deceased, sought to intervene in the action by showing the interest of his wards in the result, and that the administrator was a stockholder of the plaintiff company, and upon some other grounds. The petition for leave to intervene was denied, and the guardian appealed. The respondents, after the appellant's brief was on file in this court, procured from the appellant himself a stipulation to dismiss the appeal, which has also been filed, and upon which it is now asked that the appeal be dismissed. The attorney for the appellant alone objects to this disposition of the case, but furnishes no sufficient ground in our Opinion of the Court-SCOTT, J. [ 7 Wash. judgment for refusing the action demanded. The guardian of the minor who wages an action in a court has the same right to control the action that any other suitor has. If the course which he takes is inimical to the interests of his wards, or tainted with fraud, the way is always open for his removal and the substitution of some more suitable person. Upon the stipulation filed we can do nothing but allow the appeal to be dismissed, and it is so ordered. DUNBAR, C. J., and HoYT, SCOTT and ANDERS, JJ., concur. [No. 1026. Decided November 22, 1893.] R. J. PARK, Respondent, v. W. E. MIGHELL et al, Ap pellants. TRIAL BY REFEREE-ABSENCE OF FINDINGS REVERSAL-WAIVER OF JURY. RE-TRIAL AFTER Where a case has been reversed on appeal, on the ground that it was tried before a referee and no findings of fact had been made by him, and has been remanded upon an order that the cause be heard by the same referee upon the testimony already taken, he is not disqualified by reason of his proceedings in the former trial from making his findings of fact upon the testimony previously taken. Where a jury has been waived in an action, and trial had before a referee, the waiver holds good for a re-trial of the cause after a reversal on appeal. Appeal from Superior Court, Pierce County. H. W. Lueders, and J. P. Cass, for appellants. ent. The opinion of the court was delivered by SCOTT, J. This case was here once before (3 Wash. 737; 29 Pac. Rep. 536), when it appeared that the facts Nov. 1893.] Opinion of the Court-ScOTT, J. had not been found by the referee. A judgment had been rendered for the sum of $300 in favor of the plaintiff, but there was no finding upon many of the issues made by the pleadings, and apparently, so far as the record disclosed, there never had been a complete trial. Upon that ground the case was reversed and sent back for a re-trial, with directions to make findings upon these matters. The order contemplated that it should go back to the same referee, and be heard upon the testimony already taken. When the case came up again before the referee the defendants objected to his proceeding there with on the ground that he was disqualified by reason of the former trial, and because they desired a trial by jury. These objections were overruled. The defendants had originally waived a trial by jury, and this waiver held good, and, under the peculiar circumstances of the case, the referee was not disqualified by reason of his prior proceedings in the premises. No other testimony was offered by either side, and the referee proceeded to make his findings of fact upon the testimony previously taken, whereby he found the defendants were indebted to the plaintiff in the sum of $271, and judgment was rendered for this amount. It is contended that there was error in several orders made by the court, relating to security for costs and to the granting of continuances of the trial. As to these, it is sufficient to say that no good ground appears for a reversal of the judgment in consequence thereof. Many of the other errors alleged challenge the correctness of the findings of fact. These findings, however, appear to be complete upon the issues, and there is testimony to support them. The findings support the judgment, and no sufficient ground is shown for disturbing the same. There are many other matters discussed which have no foundation in the record that we are able to discover, 20-7 WASH. Opinion of the Court-HOYT, J. [ 7 Wash. and for that reason we deem it unnecessary to set them forth. Judgment affirmed. DUNBAR, C. J., and HoYT, STILES and ANDERS, JJ., concur. 7 306 9 670 34*1103 38* 207 7 306 13 609 7 306 40 556 [No. 1116. Decided November 22, 1893.] THE STATE OF WASHINGTON, on the relation of John A. ENFORCEMENT OF TRUST TRANSITORY ACTION - CHANGE OF VENUE. An action for the enforcement of a trust, and for an accounting thereunder, is a transitory one, irrespective of the fact that the action will take effect upon real property. The fact that certain persons named as defendants in an action are proper, but not necessary, parties thereto, will not deprive the principal defendant in an action of a transitory nature from having the action transferred to the county of his residence for trial. Original Application for Prohibition. Struve, Allen, Hughes & Me Micken, for relator. The opinion of the court was delivered by HOYT, J. A somewhat careful examination of the voluminous complaint filed in the action, which it is claimed on the part of the relator he is entitled to have transferred to the county of Kitsap for trial, satisfies us that the substantial object of such suit is to enforce a trust and compel an accounting on the part of the relator in favor of the plaintiffs in said suit. And such being the fact, we are of the opinion that the conten |